Karnataka High Court
Sri. N. S. Vishwanath vs Sri. Sathyavijaya. R on 13 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13th DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.5/2024
C/W.
CRIMINAL APPEAL NO.455/2024
IN CRIMINAL APPEAL NO.5/2024:
BETWEEN:
SRI. N.S. VISHWANATH
S/O. LATE N. SIDDAIAH
AGED ABOUT 75 YEARS
SENIOR CITIZEN
R/AT NO.92 (EWS)
1ST FLOOR, 3RD CROSS
2ND STAGE, KHB COLONY
AGRAHARA DASARAHALLI
BANGALORE-560 079
MOB: 9141729174.
... APPELLANT
(BY SRI. K. MANOHARA CHARI, ADVOCATE)
AND:
SRI. SATHYAVIJAYA R.,
S/O. LATE REVANNA
AGED ABOUT 49 YEARS
R/AT NO.117/2,
KANASU NILAYA, 7TH CROSS,
PRIYADARSHINI LAYOUT
NAGARABHAVI ROAD,
2
MOODALAPALYA
BANGALORE-560 072
MOB: 9448479399.
... RESPONDENT
(BY SRI. SARAVANA S., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.PC PRAYING TO SET ASIDE THE JUDGEMENT AND ORDER
DATED 08.12.2023 IN C.C.NO.6061/2022 PASSED BY THE XII
ASCJ AND ACMM (SCCH-08) COURT AT BANGALORE AND ETC.
IN CRIMINAL APPEAL NO.455/2024:
BETWEEN:
N.S.VISHWANATH
S/O LATE N. SIDDAIAH,
AGED ABOUT 75 YEARS
NO.92(EWS) 1ST FLOOR
3RD CROSS, 2ND STAGE,
KHB COLONY, A.D.HALLY
BENGALURU 560079
MOB:9141729174.
... APPELLANT
(BY SRI. K. MANOHARA CHARI, ADVOCATE)
AND:
M. SURESH S/O MAYANNA
AGED ABOUT 47 YEARS
NO.379, 3RD MAIN ROAD
VIJAYANANDANAGAR
NANDHINI LAYOUT
BENGALURU-560 096
MOB: 9448479399.
... RESPONDENT
(BY SRI. SARAVANA S., ADVOCATE)
3
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.PC TO ALLOW THIS APPEAL, BY SET ASIDE THE
JUDGMENT ORDER PASSED BY THE LXVI ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH-67) AT BENGALURU, DATED 22.01.2024
IN CRL.A.NO.1350/2022 AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03.06.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
The Crl.A.No.5/2024 is filed challenging the judgment and
order of acquittal dated 08.12.2023 in C.C.No.6061/2022 passed
by the XII ASCJ and ACMM Court, Bengaluru and
Crl.A.No.455/2024 is filed challenging the judgment and order of
acquittal dated 22.01.2024 passed in Crl.A.No.1350/2022 by the
LXVI Additional City Civil and Sessions Judge, Bengaluru
reversing the judgment dated 30.09.2022 passed in
C.C.No.10763/2021 by the XII Additional and ACMM, Bengaluru.
2. The appellant in both the appeals is common and the
respondents in both the appeals are different. Heard the learned
counsel appearing for the appellant in both the cases and the
learned counsel appearing for the respondents.
3. The factual aspects of the case of Crl.A.No.5/2024
which is arising out of C.C.No.6061/2022 is that the complainant
and the accused are known to each other. The accused had
sought hand loan of Rs.9/- lakh from him to clear hand loan
borrowed for his son's marriage and also to clear old debts and
hence, the said amount was paid to the accused by way of cash
on 21.12.2021 and the accused had agreed to repay the said
amount within two months with 18% interest. The accused
issued a post dated Cheque for Rs.9/- lakh and when the said
Cheque was presented, the same was dishonoured with an
endorsement 'funds insufficient' and hence, the complainant
issued a legal notice and the same was served and inspite of
service of notice, the accused neither paid the Cheque amount
nor replied to the notice. Hence, the complainant filed a
complaint under Section 138 of N.I. Act and cognizance was
taken and accused was secured and he did not plead guilty and
claims for trial.
4. The complainant in order to prove his case,
examined himself as PW1 and got marked the documents at
Ex.P1 to P12. On the other hand, accused examined himself as
DW1 and got marked the document at Ex.D1. The Trial Court
having considered both oral and documentary evidence placed
on record, acquitted the accused in coming to the conclusion
that the complainant failed to prove his financial capacity to lend
the money and also comes to the conclusion that Ex.P6 in the
present case also produced in C.C.No.10763/2021. Apart from
that the documents at Ex.P7 and P8 are produced for having
pledged the gold ornaments and paid the amount. The
complainant also relied upon the document at Ex.P9 which is the
statement in the loan ledger for jewel loan showing transfer of
the above said amount to the complainant. The Trial Court also
given the reasoning that the person who pledged the gold and
paying the interest, will not lend the money to the accused. The
Trial Court also comes to the conclusion that PW1 himself
admitted that Ex.P6 to P9 are produced in another case. The
Trial Court having considered the payment of Rs.5,50,000/- to
another accused in C.C.No.10763/2021 comes to the conclusion
that there would be a shortage of amount of Rs.4,62,000/- and
held that then, how he managed the said amount in order to pay
amount to the accused is not explained. Hence, doubted the
case of the complainant regarding the capacity to lend the
money. Accordingly, acquitted the accused. Hence, the present
appeal is filed before this Court questioning the order of
acquittal.
5. The learned counsel for the appellant in his
arguments would vehemently contend that the Trial Court fails
to consider the cogent evidence placed on record. The Trial
Court failed to consider the admission of DW1 and the Trial Court
is not taken any rebuttal evidence given by the appellant to
rebut the legal presumption available under Section 139 of N.I.
Act. The counsel would vehemently contend that once the
issuance of Cheque is admitted i.e., Ex.P1 and also other
documents, the burden lies on the accused to rebut the same
and in the absence of rebutting the same, the Trial Court ought
not to have comes to a conclusion that the complainant was not
having any capacity to lend the money. The counsel also would
vehemently contend that when the documents at Ex.P6 to P9 are
placed on record for having the money to lend the money, the
Trial Court ought not to have disbelieved the case of the
complainant. Hence, it requires interference of this Court. The
counsel also would vehemently contend that DW1 in his cross-
examination categorically admitted that he studied up to X
standard and also admits in the cross-examination that for what
reason he gave Ex.P1 and P5 but he claims that the same was
given towards security for the chit amount but no documents are
placed in this regard to show that the complainant was running a
chit business. Accused also admits that he had paid the Cheque
and the complainant had obtained his signature on the blank
paper, but he has not given any complaint or given any notice to
the complainant in this regard. Inspite of these answers are
elicited from the mouth of PW1, the Trial Court presumed that
the complainant was not having any capacity to lend the money.
6. The learned counsel for the respondent in his
arguments would vehemently contend that the Trial Court rightly
dismissed the complaint since Ex.P6 was used in both the cases
that is the present case and also in another connected matter
which is also pending for consideration. The counsel would
vehemently contend that it is elicited from the mouth of witness
is that the complainant had filed several cases, thus, the Court
has to take note of the modus aperandi of the complainant. The
counsel submits that the complainant relies upon pledging of
gold ornaments but nothing is placed on record for having lent
the money to other persons. The counsel would contend that
the Trial Court rightly considered the material on record and
doubted the case of the complainant regarding capacity as well
as pledging of gold and advancing the loan amount. Hence, it
does not require any interference.
7. In Crl.A.No.455/2024, the case of the complainant
before the Trial Court that the accused is known to him since five
years as he was introduced by one B Lohith who is the common
friend of the complainant and the accused. On 07.06.2021, the
accused approached the complainant for hand loan of
Rs.5,50,000/- for cable business and agreed to repay the same
within 3½ months. The amount was paid by way of cash and
accused had agreed to repay the same with 18% interest. On
the same day, he had issued a cheque dated 24.09.2021 for
Rs.5,50,000/-. The accused had also issued a receipt
acknowledging the receipt of the loan amount. When Cheque
was presented, the same was dishonoured with an endorsement
'funds insufficient' thus, the complainant issued the legal notice
and the same was served on the accused but he did not repay
the amount. Hence, the complainant filed the complaint
invoking Section 138 of N.I.Act and cognizance was taken and
accused was secured and he did not plead guilty and claims for
trial.
8. The complainant in order to prove his case,
examined himself as PW1 and got marked the documents at
Ex.P1 to P11 and on the other hand, accused examined himself
as DW1 and got marked the documents at Ex.D1 to D9. The
Trial Court having considered both oral and documentary
evidence placed on record, convicted the accused and directed to
pay a fine of Rs.5,80,000/-. Hence, the accused filed an appeal
in Crl.A.No.1350/2022. The First Appellate Court having
reassessed the material on record allowed the appeal and
acquitted the accused in coming to the conclusion that the
accused probablised his defence that blank Cheque and blank
paper was taken and also comes to the conclusion that the
complainant has not chosen to examine the witness of Ex.P6 that
is Lohith. The First Appellate Court held that in the absence of
non-examination of Lohith as a witness, the defence of the
accused is probable. The First Appellate Court also relied upon
Ex.D3 for having made the payment of Rs.5,500/- as part
payment. It is also specific case of the accused that earlier he
had borrowed from the complainant the amount in the year
2018. It is also not the case of the complainant that an amount
of Rs.5,500/- was paid by the accused towards interest and also
there was no any endorsement to that effect for having made
the payment. The First Appellate Court held that in the absence
of any such endorsement, the Cheque cannot be presented for
encashment without recording the part payment and comes to
the conclusion that the Trial Court also did not consider the
financial capacity of the complainant and the defence of the
accused is probable and the said conclusion is erroneous. Hence,
it requires interference of this Court.
9. The main contention of the learned counsel for the
appellant that the Trial Court in detail discussed the evidence
taking into note of the Cheque and the document of receipt for
having acknowledged the receipt of the money. The First
Appellate Court failed to consider the fact that the amount was
given and the required money was to be adjusted from taking
gold loan from Repco Bank and source of income as required by
the petitioner at the time of funding was deposed before the
Court and hence, evidence is very clear that he has got sufficient
means to advance the loan. The order of the First Appellate
Court reversing the judgment of the Trial Court is only
hypothetical and ought not to have acquitted the accused when
there was no any explanation in 313 statement of the accused
except stating that he had borrowed the amount in 2018 and
repaid the amount of Rs.3,50,000/-. Even when there was an
admission that only he had repaid the amount of Rs.3,50,000/-
and not entire amount which had availed in 2018, the First
Appellate Court completely missed the evidence available on
record and also the admission given by DW1 in his cross-
examination. The counsel would vehemently contend that, the
accused admits the signature in Ex.P1 and P6 and also he is the
B.Sc graduate and also categorically admits that he had availed
earlier loan on 29.05.2018 and payment was made by way of
NEFT to the tune of Rs.5/- lakh and also admits the account
statement which is marked as Ex.P9(a).
10. The counsel fro the appellant would vehemently
contend that DW1 also categorically admits for having filed the
civil suit against him in O.S.No.527/2022. However, he admits
signature of the accused found in the vakalath which was filed in
O.S.No.527/2022 which is marked as Ex.P10 and so also he
admits other vakalath, certified copies and same is also marked
as Ex.P11. The counsel would vehemently contend that accused
also admits that the address mentioned in Ex.P5 is correct and if
any notice is issued to the said address, the same would be
served on him. It is suggested that on 07.06.2021, he went to
the house of he complainant and clear the loan on 29.05.2018
and availed the fresh loan of Rs.5,50,000/- and the said
suggestion was denied. However, he categorically admits his
signature in Ex.P6 and he also admits that he only wrote the
address in Ex.P6. But he has not denied that Lohith who is the
witness is the son of his maternal uncle and only he says that he
is not aware of the same. He also admits signature in Ex.P1. It
is suggested that hand writing in Ex.P1 and P6 are one and the
same and the said suggestion was denied. However, a
suggestion was made that he could able to send the document
for hand writing expert and prove the same and he admits that
he can do the same.
11. The counsel referring these admissions would
vehemently contend that the First Appellate Court fails to
appreciate the material on record when the Trial Court in detail
discussed the evidence of the complainant and accused and
rightly convicted the accused and hence, it requires interference
of this Court. The counsel also would vehemently contend that
no reply was given by the accused inspite of service of notice but
only by mistake, the receipt was marked in both the cases and
the same is magnified by both the Courts and bona fide mistake
in marking the said receipt cannot be a ground to acquit the
accused unless the accused rebut the case of the complainant by
placing on record the sufficient material. Hence, it requires
interference of this Court.
12. The learned counsel for the respondent would
vehemently contend that it is the case of the complainant that
the earlier amount was adjusted and same is pleaded in the
complaint itself. The fact that the earlier transaction was not
disputed but claims that the documents at Ex.P1 and P6 are
obtained at the time of advancing the loan amount in the year
2018 and the same was misused by the complainant and the
First Appellate Court rightly appreciated the material on record
and regarding part payment in terms of Ex.D3 is also taken note
of by the Trial Court and there is no endorsement and the same
has been discussed in the judgment of the First Appellate Court
and First Appellate Court also held that witness to the document
at Ex.P6 was not examined and First Appellate Court comes to
the conclusion that the complainant was not having any financial
capacity to lend the money and rightly appreciated the material
on record. Hence, it does not require any interference.
13. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on record
as well as the grounds urged in the appeals and the arguments
of the learned counsel, the points that would arise for
consideration of this Court are:
1. Whether the Trial Court committed an error in
acquitting the accused in C.C.No.6061/2022 in the
absence of any rebuttal evidence and whether it
requires interference by this Court?
2. Whether the First Appellate Court committed an
error in reversing the finding of the Trial Court
passed in C.C.No.10763/2021 in the absence of any
rebuttal evidence and whether it requires
interference of this Court?
3. What order?
Point No.1:
14. The case of the complainant in C.C.No.6061/2022
before the Trial Court is that the complainant and the accused
were known to each other and accused had approached him for
hand loan in order to perform marriage of his son and also to
clear the old debts and hence, he advanced the amount of Rs.9/-
lakh by way of cash on 21.12.2021 and accused had agreed to
repay the same within two months with 18% interest and
accused though issued the Cheque, same was not honoured and
hence, proceedings were initiated. The complainant also
examined himself as PW1 and got marked the documents at
Ex.P1 to P12 and accused also examined himself as DW1 and got
marked the document at Ex.D1. It is not in dispute that Cheque
at Ex.P1 was issued by the accused and it contains his signature.
It is also not in dispute that bank had issued an endorsement in
terms of Ex.P2 stating that accused was not having sufficient
fund. Immediately, the complainant had issued the legal notice
and notice was served on him but accused did not repay the
amount. It is also important to note that the complainant placed
on record Ex.P6 to P8 to show that he availed the loan from the
bank pledging his gold ornaments and ledger for jewel loan is
marked as Ex.P9 and accused was given reply on 03.03.2022 in
terms of Ex.P10 and the legal notice dated 23.02.2022 of the
complainant is marked as Ex.P12. It has to be noted that when
the complainant got marked the document at Ex.P1 and also
Ex.P5, it is very clear that Cheque was issued by the accused in
terms of Ex.P1 and not disputed the signature. In the legal
notice, it is clearly mentioned that loan was advance for the
purpose of marriage of the son of the accused and contents of
complaint and legal notice are similar. Notice was also served in
terms of Ex.P12 and there is an acknowledgment in this regard
which is marked as Ex.P4.
15. It is also important to note that a separate receipt is
issued in terms of Ex.P5 which also discloses having received the
amount of Rs.9/- lakh and reason also stated that above hand
loan was received for the purpose of clearing loan which was
taken for the purpose of son's marriage and to clear personal old
debt and signature at Ex.P5 is not disputed. The complainant
also relied upon Ex.P6 to P8 for having availed the loan from the
concerned bank i.e., Repco Bank and totally more than Rs.9/-
lakh and odd. No doubt, the accused has given reply in terms of
Ex.P10 and he denied the transaction but his defence is that the
complainant was running a chit business and his son is one of
the member of the said chit business and at the time of bidding
the chit ,the complainant insisted him to give a security and
hence, he had issued a subject matter of Cheque and signed the
blank paper.
16. Having considered the complaint averments and also
notice and reply notice, this Court has to examine the evidence
available on record. PW1 reiterates the contents of the
complainant in the affidavit and also got marked the documents.
In the cross-examination, he admits that he is not filing any
Income Tax returns and also admits that Ex.P6-Receipt is also
produced in C.C.No.10763/2021. But he categorically admits
that for having lent the money, pledged his gold ornaments and
advanced the loan amount and the said aspect is not stated in
the complaint as well as in the notice. A suggestion was made
that the son of the accused had subscribed to the Chit business
and the said suggestion was denied. However, a suggestion was
made that Cheque was given as security and signature was
obtained on the blank paper and the said suggestion was denied
stating that he was not running any chit business. In the cross-
examination, a question was put to him that the son of the
accused was making the payment and he says that he was
returning the amount which was lent from him. Another
question was put to him that whether any document was
produced for having lent the loan, he says that no document is
produced since he had cleared the loan amount. He admits that
Ex.P7 is dated 26.08.2022 and Ex.P8 is 27.05.2022 and he had
withdrawn the amount and he cannot place any record to show
that the said amount was with him till advancing the loan.
17. The accused got examined and he reiterated his
defence in his chief evidence about issuance of Cheque at Ex.P1
and also the signature at Ex.P5. But in the cross-examination,
he categorically admits that he had studied up to X standard and
also admits that he performed his son's marriage on 16.05.2021.
It is suggested that he had taken the advance of Rs.9/- lakh and
in this connection, issued the documents at Ex.P1 and P5 and
the said suggestion was denied. But he claims that both the
documents are given as security. He categorically admits that
he is not having any document to show that the complainant was
running a chit business but he claims that his son was
subscribed to the said chit business and in this regard also no
document is placed on record. A suggestion was made that he
had taken false defence that the complainant was running a chit
business and the said suggestion was denied. However, he
admits his signature available at Ex.P1 and P5.
18. Having considered the evidence of PW1 and also the
evidence of DW1, it discloses that PW1 relies upon the
documents at Ex.P1 and P6 and the accused not disputes the
very two documents, but claims that the signatures were taken
on the blank paper as well as on the blank Cheque. It is
important to note that when the plea was recorded, accused
says that he has given the Cheque in connection with some
other transaction as security. During the course of the cross-
examination of DW1 and also his chief evidence, his specific
defence is that he gave the Cheque as a security since the
complainant was running the chit business. The evidence of
DW1 that though he took the specific defence that he
categorically admits that for having running the chit, he is not
having any documents but deposed that his son was transferring
the amount to the account of the complainant and also he has
not produced any document to that effect.
19. It is also important to note that accused categorically
admits that he has not given any complaint for having taken the
signature on the blank paper and Cheque and has not given any
notice. Hence, it is very clear that at the time of recording plea,
he says that he gave the Cheque in connection with some other
transaction. But in the defence he comes up with the defence
that Ex.P1 and P6 were given towards the chit transaction. But
nothing on record to show that the complainant was running the
chit. Though accused contend that his son was making payment
also, not placed any document. It is also important to note that
he gave the reply in terms of Ex.P10 wherein also he
categorically says that he was running a chit and his son was
one of the chit members and in order to prove the same also, no
document is placed on record. This Court also during the course
of the arguments, given an opportunity to the counsel for the
respondent/accused to place on record the document showing
that the complainant was running the chit business but the
counsel made the submission that no such documents are
available with the accused.
20. It has to be noted that when the complainant placed
on record Ex.P1 and P6, presumption lies in favour of the
complainant and accused has to rebut the same but no such
rebuttal evidence before the Court except taking of such a
defence. It has to be noted that the Trial Court while acquitting
the accused, the reasons are assigned that Ex.P6 is marked in
both the cases. No doubt, Ex.P6 is marked in both the cases but
on the other hand, other two documents of Ex.P7 and P8 are
also placed to show that the complainant had pledged the gold
ornaments and in respect of those two documents, nothing is
discussed by the Trial Court but the Trial Court having
considered the document of Ex.P6 comes to the conclusion that
when the complainant produced the same in other case also it
creates the doubt and also he has not utilized the said amount to
pay the money to the accused and the said observation is
erroneous. But the fact is that he had pledged the gold
ornaments and placed on record Ex.P6 to P8 in this regard is
also not in dispute and mere an error in placing the receipt in
both the cases, the Court cannot comes to such a conclusion
that he is not having any capacity. Ex.P9 is the statement
showing the transfer of said amount to the complainant. The
Trial Court not discussed with regard to Ex.P7 to P9 and material
discloses that the Cheque was issued and apart from that Ex.P6
contains the signature of the accused and the very conclusion of
the Trial Court that he was not having the capacity to lend the
money is erroneous and doubted that excess amount would be
Rs.4,62,000/- having advanced the amount of Rs.5,50,000/- to
other accused in C.C.No.10763/2022 and also in the present
case the amount of Rs.9/- lakh. The mere suggestion is not
enough and answer has to be elicited from the mouth of the
witnesses. Unless rebuttal evidence is placed on record, mere
confronting the document at Ex.D1 that son of accused
transferred the amount of Rs.12,000/- on different dates cannot
be a ground to disbelieve the case of the complainant and the
complainant is also given the explanation that the son of the
accused also availed the loan from him and he had cleared his
loan amount and hence, he did not place any document before
the Court. When such explanation is given, merely relying upon
the document at Ex.D1 unless a cogent evidence is placed on
record rising any probable evidence, the Trial Court ought not to
have comes to a such conclusion that the complainant not
proved the case. The very finding of the Trial Court is erroneous
and there cannot be any finding on presumption and assumption
when documents of Ex.P6 to P9 were placed on record and apart
from that Ex.P1 and P5 are placed on record and what made him
to execute the Cheque as well as receipt, nothing is explained in
the defence evidence. Hence, it requires interference of this
Court. Accordingly, I answer the above point as affirmative.
Point No.2:
21. In C.C.No.10763/2021, the case of the complainant
was accepted by the Trial Court in coming to the conclusion that
the material placed on record discloses the issuance of Cheque
and also the receipt and accepted the case of the complainant
that amount was advanced. It is the case of the complainant
that earlier an amount was advanced in 2018 and after clearing
the said amount again he borrowed the amount and issued the
subject matter of the Cheque and also receipt. The First
Appellate Court reversed the finding of the Trial Court in coming
to the conclusion that the specific defence of the accused that in
the year 2018, he had borrowed an amount of Rs.5/- lakh from
the complainant and it was transferred to his account through
RTGS. It is not in dispute that the amount was transferred
through RTGS in the year 2018. It is also the contention that he
had repaid the amount through RTGS to the extent of
Rs.3,50,000/- and also accused placed on record Ex.D3 to D8
statement and passbook. In the cross-examination of DW1,
Ex.P9 was confronted having advanced the amount of
Rs.5,00,000/-.
22. It is discussed that accused disputed the financial
capacity to advance the amount. It is also the case of the
complainant that he had taken the loan from pledging the gold
ornaments and paid the amount. It is also emerged in the
evidence that other case filed against one Sathyavijay is also
admitted. The complainant also relied upon the document of
Ex.P6 - receipt allegedly executed by the accused in
confirmation of transaction apart from the Cheque and the
signature therein is also admitted by accused but he denied the
contents. The First Appellate Court also taken note of the fact
that contents belongs to PW1 since there is admission. Having
considered said admission only, comes to the conclusion that it
would probable the defence of the accused that blank Cheque
and signature on blank paper was taken. The complainant has
not chosen to examine the witness to Ex.P6 i.e., Lohith. It has to
be noted that a suggestion was made to PW1 that said Lohith is
the maternal aunt's sons of the accused but accused did not
deny the same but only he says that he is not aware of the
same. The case of the complainant that Lohith is the common
friend of the complainant and the accused. It has to be noted
that said witness could be summoned through the Court by the
complainant and when the accused took the defence that he had
signed on the blank paper, accused ought to have been
examined the said Lohith who is non other than his relative.
23. It is the specific case that signature was taken on
blank paper and same ought to have been proved by the
accused and not the complainant. When the accused admits the
documents at Ex.P1 to P6, he has to rebut the evidence before
the Trial Court. Instead of rebutting the same, he kept quiet and
not examined the said Lohith. Thus, the Trial Court committed
an error in making an observation that the complainant ought to
have been examined the witness to the document at Ex.P6 and
the accused did not dispute the document of Ex.P6 but only his
contention is that a signature was taken in the blank paper. Such
being the case, his relative Lohith ought to have been
summoned and proved by the accused that his signature was
taken on blank paper but the same was not done. Apart from
that the Trial Court also given the reason that there was a
repayment of amount of Rs.5,500/- on 21.06.2021 and the same
was transferred through NEFT to the complainant and no dispute
that the said amount was made. But it is the case of the
complainant that accused borrowed the amount on 07.06.2021
but this payment was made on 26.06.2021 and the same was
not towards the part payment. But the Trial Court erroneously
comes to the conclusion that the same was a part payment. But
it is the specific case of the complainant that amount was
borrowed agreeing to repay the same with 18% interest per
annum and also agreed to repay the same within 3½ months. If
any substantial statement is made, then, there would have been
reasoning of the Trial Court would have been accepted that same
was a part payment. Having considered the payment of
Rs.5,500/-, First Appellate Court comes to the conclusion that
there was no any endorsement and also comes to the conclusion
that he was not having the financial capacity but the fact is that
the accused borrowed the loan in the year 2018 it not in dispute.
According to him, he made the payment of Rs.3,50,000/- but not
made the payment in entirety. But he contends that the
documents which have been given earlier was misused and the
material is very clear that even in terms of the admission on the
part of the accused that he did not repay the entire amount. No
doubt in 313 statement, he has stated that he made the
payment of Rs.3,50,000/-. But on perusal of the document at
Ex.P6 is clear that he had taken the amount of Rs.5,50,000/-
and also DW1 categorically admits in the cross-examination that
he only mentioned the address in the receipt. Once, he
mentioned the address in the receipt and also the signature
found as a witness Lohith and his name and address is
mentioned in the document also in the very same hand writing
and ought to have been explained the same by the accused by
examining the said witness Lohith but no reply was given when
the notice was given to him.
24. It is also important to note that when he was cross-
examination, he categorically admits that if any notice is given to
him to the address which is mentioned in the notice in Ex.P5,
same is correct and it is not the case that address mentioned in
Ex.P5 is not belongs to his address. He categorically admits his
signature at Ex.P6 as well as in the Cheque. When suggestion
was made that his relative had signed in Ex.P6 as a witness, he
has not denied the same and also admitted in the cross-
examination that signature in Ex.D1 also belongs to him. It is
also important to note that in the cross-examination, he
categorically admits that if writings mentioned in Ex.P1 and P5
are not that of, he can send the document to the hand writing
expert and get the report and there was no any difficulty. When
all these admissions are elicited from the mouth of DW1 and
when there is no rebuttal evidence on the part of the accused
and when the presumption lies in favour of the complainant that
he had proved the document that Ex.P1 and P6, burden lies on
the accused to rebut the same but no such rebuttal evidence
when there is clear admission on the part of DW1 in the cross-
examination that signature available at Ex.P1 and P6 belongs to
him and nothing is rebutted. But the First Appellate Court
committed an error in re-appreciating the material on record and
reversing the judgment of the Trial Court and the same is not in
a proper perspective and carried away only in respect of the
payment of amount of Rs.5,500/- that too subsequent to the
availment of loan amount that was availed on 07.06.2021 and
payment was made on 26.06.2021 and the very approach of the
First Appellate Court is erroneous and it requires interference of
this Court. Accordingly, this point is answered as affirmative.
Point No.3:
25. In view of the discussions made above, I pass the
following:
ORDER
i) The Criminal Appeal No.5/2024 is allowed.
ii) The impugned judgment of acquittal dated
08.12.2023 passed in C.C.No.6061/2022 by
the XII ASCJ and ACMM Court, Bengaluru is
set-aside. Consequently, the respondent is
directed to pay the compensation amount of
Rs.9,10,000/- and out of that Rs.9,00,000/- is
payable to the appellant and remaining
Rs.10,000/- shall vest with the State.
iii) If the respondent fails to make payment within
a period of two months, he shall undergo
simple imprisonment for a period of six
months.
iv) The Criminal Appeal No.455/2024 is allowed.
v) The impugned judgment of acquittal dated
22.01.2024 passed in Crl.A.No.1350/2022 by
the LXVI Additional City Civil and Sessions
Judge, Bengaluru is set-aside and the
judgment dated 30.09.2022 passed in
C.C.No.10763/2021 by the XII Additional and
ACMM Court, Bengaluru is confirmed and
restored.
Sd/-
(H.P. SANDESH)
JUDGE
SN
